Court weighs in on police action

Martin A. SchwartzTHE BALTIMORE SUN

SINCE THE END of the Earl Warren Supreme Court in 1969, the court has continuously and substantially watered down Fourth Amendment protections against police action. It has done so principally by sanctioning an ever-increasing array of warrantless searches and by creating exception after exception to the rule requiring that evidence obtained as a result of an unconstitutional search be excluded at trial.

The Supreme Court decisional law is riddled with so many exceptions to the warrant requirement that we have reached the point where warrantless searches are the norm. So, too, application of the exclusionary rule has become the exception rather than the rule.

Given these developments, the legal community and the media were taken by surprise by a recent unanimous Supreme Court decision. The court ruled in a Florida case that an anonymous tip that a black youth wearing a plaid shirt was at a bus stop carrying a concealed gun did not justify a police officer stopping and frisking a person at the bus stop who met the description.

The court found that this information did not constitute the reasonable suspicion required for the police to stop someone. Does this unanimous decision mean that the tide in the Supreme Court has turned to meaningful enforcement of the Fourth Amendment against police searches and seizures? It's an appropriate question.

About a year ago, Justice John Paul Stevens observed in an opinion that during his many years on the court he has heard lawyers argue scores of Fourth Amendment cases. The court, he said, has generally been sensitive to the needs of law enforcement and, in virtually all of these cases, at least one justice thought the police action was reasonable; in only a handful did the court unanimously find a Fourth Amendment violation. A present-day unanimous decision by the Supreme Court that police action violated the Fourth Amendment is, indeed, a modern miracle.

But miracles sometimes happen, even in bunches. And, in fact, one might get the impression that Fourth Amendment miracles are happening more frequently lately. For in some other quite recent decisions, the court also unanimously upheld the suspect's Fourth Amendment claim.

Last term, the court unanimously held that Iowa went too far when it authorized police officers to conduct warrantless searches of automobiles upon making traffic stops. The court ruled that the doctrine allowing police officers to search automobiles when they arrest the driver or a passenger does not extend to traffic stops in which the driver is given a traffic citation and allowed to go.

The court last term also unanimously held that law-enforcement officers went too far in inviting members of the media to tag along to observe the execution of arrest and search warrants in suspects' homes. These decisions, however, must be viewed in the broader context of the Supreme Court's Fourth Amendment jurisprudence developed over the past 30 years. Viewed in this light, the recent rulings do not begin to repair the damage the court has done to the Fourth Amendment.

The court's Fourth Amendment decisions over those 30 years have overwhelmingly favored law-enforcement authorities. Just a few months ago, the court held, 5-4, that an individual's flight upon seeing the police in a high drug-trade area gave the police reasonable suspicion to stop and frisk him.

The recent pro-Fourth Amendment victories have come in extreme cases where the government sought to push the envelope too far. Consider the anonymous-tip case. If the court had held that an anonymous tip that a person meeting a particular description is carrying a gun justified a police stop and frisk, it would, as Justice Ruth Bader Ginsburg pointed out, enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the targets unlawful carriage of a gun.

So viewed, the court's decision in the Florida anonymous-tip case is significant in a type of negative sense. The Fourth Amendment would have little meaning if the police could seize presumptively innocent people based on nothing more than a bare-bones anonymous tip.

When the court has had leeway in interpreting the Fourth Amendment, it has invariably favored the government. It has held that individuals have no reasonable expectation of privacy, and hence no Fourth Amendment protection, with respect to: trash placed in opaque bags at the curb for collection; financial information turned over by a customer to a bank; telephone numbers dialed and recorded by a pen register; aerial surveillance of a back yard; and dog sniffs of luggage at an airport.

The post-Warren court has embraced virtually every government attempt to carve out exceptions to the exclusionary rule. The court's decisions have created exceptions to the rule for good-faith reliance by the police upon search warrants that turn out not to be based upon probable cause; good-faith police reliance upon erroneous information in court computer records; grand jury proceedings; parole revocation proceedings; and attempts to impeach the credibility of criminal defendants who exercise their constitutional right to testify on their own behalf.

So, looking at the big picture, the Fourth Amendment, while alive, is still not too well. The recent rulings should not mislead us into false security that the Supreme Court is vigorously enforcing our Fourth Amendment protections.

Martin A. Schwartz is a professor of law at Touro College in New York. He wrote this article for Newsday.